Philpott: Special 'marriage leave' for gays weighed

By: Tom Philpott

September 8, 2013Updated: September 8, 2013 at 1:25 pm

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With legislators raising legal issues and "unfair" echoing across military communities, Defense officials are reviewing a weeks-old policy to allow up to 10 days of special "marriage leave" for gay and lesbian troops assigned more than 100 miles from a state where they can marry legally.

Instead of unearned leave, which might need to be backed by statute, commands might be encouraged to grant up to 10 days' "administrative absence." The intent still would be to give gay service members extra time off to travel to where same-sex marriage is allowed, and thus qualify them sooner for full benefits. Those benefits include spousal medical care and "with dependents" housing allowances, military and congressional sources confirm.

To address worry in Congress and anger in the ranks that marriage leave is exclusive to homosexual couples, Defense officials are considering more liberal use of administrative absences for heterosexual members overseas who wish to marry yet can't due to local restrictions.

An aide to Sen. Jim Inhofe, ranking Republican on the Senate Armed Services Committee, confirmed that committee staff has been briefed by Defense officials on possible changes to the controversial marriage leave.

Officially, however, the department doesn't acknowledge that any change is under study despite buzz across the services and no sign yet that any service branch is directing commands to grant new marriage leave.

Navy Lt. Commander Nate Christensen, a Defense spokesman, reiterated the Aug. 14 announcement that the department "will immediately implement policies to allow military personnel up to 10 days . of non-chargeable leave" for travel to jurisdictions where same-sex marriage can occur, thus helping accelerate access to military benefits of marriage.

The services, however, have been party to discussions of possible changes, and had not issued final guidance on marriage leave by Aug. 28.

"We have not gone forward with that particular policy because we don't have a signed policy memorandum yet," said one service official.

Republicans in Congress have led criticism of marriage leave. But even some Democrats feel establishing such leave requires a law change.

"I am unaware of any legal authority to grant uncharged leave to couples seeking to be married," Inhofe wrote to Defense Secretary Chuck Hagel Aug. 20, a week after Hagel had unveiled the new leave policy.

Inhofe reminded Hagel that the Department of Defense is obliged "to keep Congress advised" on plans to "modify rights and benefits of our armed forces. It is necessary that the Senate must first consider the implication of such a policy before the Department of Defense implements a modification of Department of Defense Instruction 1327.06 'Leave and Liberty Policy and Procedures.'"

That instruction was modified Aug. 13 with language adding a ninth category of non-chargeable leave, "Marriage Leave for Same-sex Couples." Other nonchargeable categories of leave include convalescent, maternity, parental and adoption.

Inhofe said he supports "ensuring that all men and women who serve our country and their families should be treated fairly and equally. However, this change in policy will create disparate treatment between same-sex and opposite-sex couples . contrary to the Department's stated policy."

Reps. Harold "Buck" McKeon), chairman of the House Armed Services Committee, and Joe Wilson, military personnel subcommittee chair, wrote in an earlier letter to Hagel that he is bestowing a benefit based on "sexual orientation, something that all of the department's policy guidance since the beginning of the repeal of the Don't Ask Don't Tell policy states should not be done."

Critics believe the Obama administration created this controversy by going too far to please gay and lesbian groups, even after the Supreme Court in June struck down a portion of the Defense of Marriage Act, making gays with valid state marriage licenses eligible for all federal benefits available to other married citizens, including military couples.

But in the decision's wake, Hagel rescinded a plan announced last February by departing Defense Secretary Leon Panetta to extend limited benefits, including military IDs and base shopping, to declared domestic partners of service members who aren't able to marry where they reside.

Instead, Hagel approved the new marriage leave to help "level the playing field between opposite sex and same-sex couples seeking to be married." This, he said, recognizes that many same-sex couples wishing to marry still must travel to a state where such unions are legal.